I recently read an interesting law and language blog by linguist, Julie Sedivy, discussing the linguistic implications of choosing brand names, which by virtue of the name, makes a product claim. The impetus for her analysis were the recent struggles encountered by Health Canada and the Canadian Food Inspection Agency (CFIA) in regulating food product health claims. Sedivy specifically discussed the recent case of infant formula manufactured by Enfamil, called "A+" and "Gentlease A+." The difficulty with these brand names is obvious: is the A+ brand truly superior to all others and is Gentlease A+ truly easier to digest than all other brands? In this situation, there appeared to be a struggle between Health Canada and the CFIA, with the inspectors raising concerns over the labelling claims while Health Canada preferred a wait and see attitude.
Although Sedivy makes a linguistic distinction between a direct or implied claim (something that is either true or false) and a mere impression, Canada's Food And Drug Act makes no such semantic distinction. Both s. 5(1), relating to food, and s.9(1), relating to drugs, makes either a claim or an erroneous impression an offence when it states:
No person shall label...any (food or drug) in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety.
The possible vagueness of the phrase "erroneous impression" was discussed by the Supreme Court of Canada in Canada v. JTI-MacDonald Corp., a 2007 case involving tobacco advertising to young people. In an unanimous decision, the SCC found the phrase "erroneous impression" was not overbroad, vague, or too subjective. In the Court's view, the phrase was "an attempt to cover the grey area between demonstrable falsity and the invitation to false inference" such advertising conveys. Thus, "leading consumers to infer things that are not true" about a product is a proper restriction on freedom of expression rights under the Charter.
This case decision is completely consistent with prior SCC cases on misleading advertising such as the 1979 Labatt Breweries case, where the majority found the brand name including the word "lite" as the "phonetic equivalent" to "light" would lead a consumer to mistakenly assume the beer was indeed a "light beer" according to regulatory standards. Even on the basis of "ordinary usage of language today" this is so: merely consider "nite" vs. "night" as recognized, although not unanimously approved of, synonyms.
It is clear misleading claims, impressions, and inferences can attract penalty but how about metaphorical branding? Metaphors do not just require inferences to be drawn but require deep connections to be made between the named object and another object or idea, which,without the metaphor, would not be readily connectable. An example of this would be the metaphors used in relation to the internet, which involve movement through a landscape: Netscape Navigator, Safari, and Internet Explorer all use this deeply rooted metaphor.
Whether this kind of branding would be clearly prohibited under the FDA may be more difficult to decipher. To read more on metaphors, I highly recommend Metaphors We Live By written by the linguist George Lakoff and the philosopher Mark Johnson. Metaphors also have a place in legal discourse but I will leave that journey for another time.